The Ironies of Shi'i Law

Abstract

Within Shi’i Islam, certain high jurists, known as mujtahids, continue to pronounce religious doctrine over vast areas of law that are concurrently the subject of state jurisdiction. The presumption is that this pits Shi’i religious doctrine in a form of perduring conflict with the state, to which it has reacted either through Quietism (that is, treating the state as a product of the profane world from which the true believer is alienated to the fullest extent possible) or, more recently, through juristic attempts to seize entire control of the state, as per the Islamic Revolution of 1979. Yet experiences beyond Iran challenge these assumptions. Specifically, the jurists of Najaf currently continue to seek recognition for religious rules in particular contexts that lie in considerable tension with state law, while at the same time neither delegitimizing the state and its concomitant rulemaking capacities, nor seeking to assume control over them. The jurists, that is, and the believers over whom they exert substantial influence, seem to occupy a space wherein they engage in the simultaneous acceptance and rejection of the law of the state. This paper explores these tensions and anomalies in the particular context of Iraq, the nation state where the Najaf jurists reside, and maintain that they are not at all unusual or surprising. In fact, they are merely a manifestation of the type of legal pluralism that prevails around the globe.